The opinion
FINNEGAN, Circuit Judge
(concurring).
I join in the Court’s opinion and agree that the judgment appealed should be affirmed. There is absent in this record any abuse of discretion on the trial judge’s part in refusing the requested particulars, as Judge Lindley’s opinion makes plain. Reviewing denials of motions for a bill of particulars necessitates an examination of the facts and circumstances surrounding each case. Defense requests for particulars, under Rule 7 (f), Federal Rules of Criminal Procedure, 18 U.S.C. (1952 ed.), are now apparently geared to the increasing pace of net worth and bank deposit methods of prosecuting criminal cases involving alleged violation of the internal revenue laws. My separate statement arises from a frank recognition of the peculiar problems confronting counsel and client defending against cases erected on either one or both of those theories. When he delivered the Court's opinion in Holland v. United States, 1954, 348 U.S. 121, 129 , 75 S.Ct. 127, 132 , 99 L.Ed. 150 , Mr. Justice Clark cautioned that: “Trial courts should approach these cases in the full realization that the taxpayer may be ensnared in a system which, though difficult for the prosecution to utilize, is equally hard for the defendant to refute.”
Averting surprise to the defense, in criminal cases, is a chief aim of a bill of particulars by furnishing the defendant with particulars he is enabled to prepare his defense and meet the accusations embodied in the indictment under which he is tried. It is for this reason that the prosecution is delimited to the perimeter staked out by the particulars supplied in response to an order allowing the defense motion. United States v. Neff, 3 Cir., 1954, 212 F.2d 297, 309 .
Attached to Doyle’s motion for a bill of particulars is an affidavit of his certified public accountant stating that he “ * * * examined the books and records of the defendant John J. Doyle for the years 1947 and 1948; and the income disclosed by said books and records is in agreement with said defendant’s copies of his income tax returns as filed for said years.” Another passage from the Holland case, 348 U.S. 121, 131-132 , 75 S.Ct. at page 133 , has significance here:
*797 “The net worth, technique as used in this case, is not a method of accounting different from the one employed by defendants. It is not a method of accounting at all, except insofar as it calls upon taxpayers to account for their unexplained income. Petitioners’ accounting system was appropriate for their business purposes; and, admittedly the Government did not detect any specific false entries therein. Nevertheless, if we believe the Government’s evidence, as the jury did, we must conclude that defendants’ books were more consistent than truthful, and that many items of income had disappeared before they had even reached the recording stage.”
Insisting that his books and records coincide with the tax returns filed, and on which the indictment is based, Doyle asked that the government supply him with “the method by which ‘joint net income’ ” was determined; the amounts and items of income, deductions, and credits, and for “the method used in reconstructing” income for the calendar years involved. Yet the indictment charged Doyle with an offense described in statutory language. The short of it is that Doyle bottoms his assertion of discretion abused on the district judge’s refusal to order a revelation of the “theory” of prosecution. There is a difference between specifying the charge made against an accused person and the theory which is pursued by the government in establishing its case at a trial on the merits. From this record it appears that Doyle was in possession of the means of ascertaining the various items of income and deduction that he wanted the government to disclose. United States v. Skidmore, 7 Cir., 1941, 123 F.2d 604, 607 . My remarks and concurrence are expressly limited to this appeal, for the problem of a bill of particulars is a sensitive area in federal criminal prosecutions of the type involved here, and I would prefer to leave latitude available for future reviews of district judges’ discretion.